CITATION: Canadian Imperial Bank of Commerce v. Chaly, 2020 ONSC 2584
COURT FILE NO.: 20/03
(Brampton)
18/25
(Milton Small Claims Court)
DATE: 20200424
SUPERIOR COURT OF JUSTICE - DIVISIONAL COURT - ONTARIO
RE: Canadian Imperial Bank of Commerce v. Chaly
BEFORE: D.L. Corbett J.
COUNSEL: Keith Yeung , for the Respondent CIBC
Alisa Chaly, self-represented Appellant
CASE MANAGEMENT ENDORSEMENT
[1] The respondent CIBC requested that the court schedule a motion in this case pursuant to the Notice to Profession effective April 6, 2020. The motion had not been commenced as of the suspension of ordinary court operations as a result of the COVID-19 crisis.
[2] In response to CIBC’s request to schedule a motion, the court directed as follows by email on April 8, 2020:
Justice Corbett, the Divisional Court Administrative Judge, has directed me to advise you as follows:
The moving party should serve its motion materials by email and then file a copy with the court by email to this email address.
The Court will then give further directions on the scheduling of this motion.
The responding party will be given an opportunity to respond to the moving party's motion materials, and may start preparing that response as soon as she receives the motion materials from the moving party.
Parties will be required to file their materials in paper form with the court office in Brampton, and to pay any applicable fees, once the current suspension of ordinary court operations as a result of COVID-19 is over.
[3] CIBC delivered motion materials seeking orders quashing the appeal, and in the alternative ordering the Appellant to order (and pay for) transcripts for the appeal, ordering the Appellant to serve counsel with CIBC with her appeal materials, and ordering the Appellant to post security for costs of the appeal. I directed a case management teleconference, which took place on April 21, 2020.
[4] By the end of the teleconference, the court established a schedule for exchange of appeal materials and advised that the court would schedule a return date for argument of the appeal on the merits by video conference. In the first part of this endorsement I set out this court’s case management directions to the parties. In the second part of this endorsement I explain how this conference came to shift focus from the motion CIBC wished to bring to directions for return of the appeal on the merits.
[5] The appeal from the judgment of the Small Claims Court in Brampton (unreported) shall proceed on June 8, 2020, for an estimated 3.0 hours, before Emery J., sitting as a single judge of the Divisional Court. The hearing will be conducted as a video conference. ZOOM technology will be used. Further details about the video conferencing process will follow subsequently.
[6] Neither counsel nor the court will gown for the hearing. Instead, business attire is required for counsel with a speaking role in the hearing. All parties must ensure that they participate in the videoconference from appropriate surroundings and that they take reasonable steps to reduce the risk of interruption or disturbance during the hearing.
[7] The Appellant shall deliver her appeal materials to the court by April 24, 2020, by email. No email shall be larger than 10 MB in size. CIBC shall deliver its responding materials by May 25, 2020. CIBC may deliver its materials by email, if they are smaller than 10 MB. If CIBC’s materials exceed 10 MB in size, then CIBC shall arrange for a password-protected electronic drop box from which its materials may be downloaded. CIBC shall have all of its materials delivered by email or uploaded to a drop box by May 25, 2020, and CIBC shall provide the court and the Appellant with the URL and password for any drop box by May 25, 2020.
[8] Between the case management conference call and release of this endorsement, the Appellant has delivered her appeal materials by email. The following directions apply to CIBC’s materials and any further materials the Appellant may deliver pursuant to this endorsement; they do not apply to the materials delivered by the Appellant prior to release of this endorsement:
(a) All documents other than factums, counsel sheets, bils of costs and costs outlines shall be delivered in pdf format.
(b) Documents should be labelled in a manner that identifies them clearly for the court so that it is not necessary to open the document to understand what it is. Pages should be numbered sequentially within each pdf. If this is not practical, given the current state of the documents, then individual documents should be uploaded to the drop box in pdf form, so that each document is clearly labelled, enabling the panel to find documents quickly.
(c) Factums are to be filed in Word version. Where possible, the factums should contain hyperlinks for authorities and, if possible, hyperlinks to a “Factum Compendium”, described below.
(d) Books of authorities containing the full text of authorities should not be delivered. However, citations to cases in the factums are to provide, if possible, a hyperlink to the version of cases. The only exceptions to this principle are authorities not available on, such as excerpts from textbooks, foreign law, or Canadian decisions not reported on: these should be collected in a small brief of unreported authorities and filed electronically.
(e) Parties may deliver a “Factum Compendium” containing single pages or brief portions of cases cited, and brief portions of evidence from the record referenced in the factum, hyperlinked in the factum. Where portions of cases are included in a compendium, the title of proceedings and headnote should be included as well. Where portions of the record are included in a Factum Compendium, the first page of the document and identification of where it may be found in the record should also be provided.
(f) All parties are permitted to (but are not required to) deliver the following additional documents (in addition to documents permitted under the Rules):
(i) A version of their previously filed factum with hyperlinks to cases and/or evidence;
(ii) A Factum Compendium, described above; and
(iii) A compendium for oral argument, containing excerpts of evidence and authorities to which counsel will refer in oral argument.
(g) All parties shall deliver a counsel sheet setting out the name(s) of counsel or parties and their estimated time for submissions.
(h) If the parties have not agreed as to costs then each party shall deliver its bill of costs and costs outline and any brief supporting materials relied upon in respect to costs. The court does not open costs materials until the conclusion of the hearing.
(i) All documents for use in the hearing are to be delivered by May 25, 2020, except for compendiums for oral argument, counsel sheets and costs materials, which shall be delivered by June 3, 2020.
[9] Parties will be required to file their materials in paper form with the court office in Brampton (to the extent that they have not already done so), and to pay any applicable fees, once the current suspension of ordinary court operations as a result of COVID-19 is over.
[10] If a party believes that there are points from the case management conference that are not reflected in this endorsement, they should so advise the court by email as soon as they can.
[11] CIBC’s motion is dismissed as withdrawn on the basis of discussions during the case management conference, which I summarize here briefly.
[12] The Small Claims Court judgment was rendered in December 2019. The Appellant brought her appeal in a timely way, and delivered a certificate indicating that she did not require any transcripts from the trial for the purposes of the appeal. She also filed a certificate of perfection indicating that she had delivered all of the materials upon which she relies for her appeal.
[13] CIBC filed a respondent’s certificate indicating that it required trial transcripts for the purposes of the appeal. The Appellant did not thereafter order transcripts or certify that she had done so.
[14] The Rules provide that an appellant is responsible for ordering and paying for transcripts, whether those transcripts are required by the appellant or a respondent. However, in this case, I would not require the appellant to pay for transcripts sought by CIBC. If CIBC does obtain and file transcripts, it may seek to recover the costs of those transcripts as part of any costs caim in the appeal, and that issue will be in the discretion of the appeal judge.
[15] In respect to the motion to quash, I indicated that it seemed fairly clear on the face of the judgment of the Small Claims Court that there are arguable issues on appeal. Appeal rights are substantive rights, and it seemed to me unlikely that the appeal would be quashed for lack of merit. Further, in the current COVID-19 situation, the court is able to schedule a hearing of the appeal, on the merits, conducted by videoconference, and the appeal could be decided on the merits within roughly the same time that would be required to have a preliminary motion heard. As a matter of proportionality, it seemed to me that the most practical course was for the appeal to go forward on the merits, rather than that the parties incur the expense and delay of a preliminary motion on the merits. Similar logic applies to a motion for security for costs in the context of an appeal where the appellant is an individual resident in Ontario. Counsel for CIBC very practically allowed as how the prospect of a quick date for the appeal on the merits cast CIBC’s motion in a different light, and he was prepared to accept the court’s recommendation that we dispense with the motion and schedule the appeal.
[16] The court has endorsed its fiat on this endorsement this day; the unsigned version distributed to the parties today has the authority and effect of the signed version, a copy of which will be provided to the parties in due course after the suspension of ordinary court operations is lifted.
D.L. Corbett J.
Date: April 24, 2020